Dyck v British Columbia (Residential Tenancy Branch), 2023 BCSC 440 (CanLII)
IN THE SUPREME COURT OF BRITISH COLUMBIA
|
Citation: |
Dyck v. British Columbia (Residential Tenancy Branch), |
|
|
2023 BCSC 440 |
Date: 20230323
Docket: L134267
Registry: Kelowna
Re: Judicial Review Procedure Act
Residential Tenancy Act
Between:
Henni Dyck
Petitioner
And
Gary Lyndon and the Director, Residential Tenancy Branch
Respondents
Before: The Honourable Mr. Justice Betton
On appeal from: An order of the Residential Tenancy Branch, dated June 1, 2022 (Lyndon v. Dyck, docket 210038754)
Reasons for Judgment
|
Appearing on behalf of the Petitioner: |
T. MacKean |
|
Counsel for the Respondent G. Lyndon: |
J.C. Adam |
|
No other appearances |
|
|
Place and Dates of Trial/Hearing: |
Kelowna, B.C. November 1, 2022 February 22–23, 2023 |
|
Place and Date of Judgment: |
Kelowna, B.C. March 23, 2023 |
Table of Contents
Introduction
[1] The petitioner/landlord seeks judicial review of a Residential Tenancy Branch (“RTB”) arbitration decision. That decision imposed a financial penalty on the landlord of $11,860.00.
[2] The arbitrator concluded that the landlord had not established that extenuating circumstances prevented the landlord from occupying the rental unit for at least six months following the effective date of the landlord’s notice to terminate the tenant’s tenancy.
[3] The landlord alleges the hearing was procedurally unfair and the decision was patently unreasonable.
Background
[4] The landlord provided the tenant with a two-month notice to terminate his tenancy on or about September 27, 2020, with an effective date of November 30, 2020. The basis for the termination was that the landlord or her “close family member” intended to occupy the unit. On August 27, 2021 the tenant filed an application for dispute resolution, seeking compensation. The tenant’s summary included in a notice of dispute resolution proceeding dated September 8, 2021 is as follows:
I was given a Notice to End Tenancy for Landlord’s Use of Property on Sep 29, 2020. It was only a couple weeks after I signed a new Tenancy Agreement - owner hired a new property manager. I moved out Nov 1, 2020. On April 15, 2021 I saw that the suite was put for sale. I know that neither the owner nor her family moved into the suite - I saw it remained empty after I moved out. Neighbours confirmed no one moved in before selling. I am sure that the owner did not act in good faith evicting me.
[5] Hearings were convened by the RTB by teleconference on March 7, 2022 and May 9, 2022.
[6] On June 1, 2022 the arbitrator rendered a written decision in favour of the tenant, the basis of which is summarized in these paragraphs from it:
Given the above, the only issue for me to determine is whether the landlord complied with the reason stated on the 2 Month Notice for a minimum of 6 months from the effective vacancy date, and if not, has the landlord provided sufficient evidence of extenuating circumstances that prevented the landlord from accomplishing, within a reasonable period after the effective date of the notice, the stated purpose and using the rental unit for that stated purpose for at least 6 month’s duration, beginning with a reasonable period after the effective date of the notice.
…
I find RTB Policy Guideline 50 takes a reasonable approach and based on the evidence before me, I find the landlord was already aware of COVID which began in March 2020 and that prior to issuing the 2 Month Notice, the landlord ought to have determined whether COVID would prevent them from complying with the reason stated on the 2 Month Notice.
I have thoroughly reviewed the documents submitted by the landlord and find the reasons provided by the landlord and their agent do not meet the definition of extenuating circumstances that prevented the landlord from complying with the stated purpose within a reasonable period after the effective date of the 2 Month Notice and using the rental unit for that stated purpose for at least six months’ duration. Rather, I find the landlord made the decision to delay their retirement and continue to work. I find the landlord could have and should have anticipated that COVID could create travel issues between Manitoba and BC during a pandemic, especially considering that the landlord is a nursing program director working in a Manitoba hospital.
Based on the above, I find the landlord has failed to satisfy me that extenuating circumstances existed that prevented the landlord from complying with the stated purpose within a reasonable period after the effective date of the 2 Month Notice and using the rental unit for that stated purpose for at least 6 months’ duration. Therefore, I find the tenants are entitled to $11,760.00 in compensation from landlord, comprised of twelve times the monthly rent of $980.00 pursuant to section 51(2) of the Act.
[7] The landlord sets out the following grounds for an order that the decision should be set aside:
The grounds on which this relief is sought are as follows:
(a) [The arbitrator] erred in that he failed to critically analyze the evidence submitted;
(b) [The arbitrator] erred in his decision which was unreasonable on its face and unsupported by evidence;
(c) [The arbitrator] erred in his decision, in that the evidence presented by the applicant was not sufficiently clear, convincing and cogent enough to satisfy the balance of probabilities test;
(d) [The arbitrator] erred in his finding that extenuating circumstances had not been established by the uncontradicted evidence of the Petitioner and therefore his decision was openly, evidently, and clearly irrational, and therefore patently unreasonable.
[8] The respondent director of the RTB filed a response taking no position. That response provides a review of relevant law and legislation. The director also filed an affidavit of a “policy analyst” attaching the RTB file materials.
[9] The director did note that the director was improperly identified in the petition and suggested that the style of cause be amended accordingly to read “Director, Residential Tenancy Branch”.
[10] The tenant opposes the relief sought by the landlord.
[11] At the time of the first hearing the RTB did not record its hearings. By the time of the second hearing that had changed. The tenant acquired the recording of the second hearing and a transcript was prepared and included in the petition hearing materials.
[12] The landlord’s common-law partner, Mr. MacKean, appeared with and made submissions on behalf of the landlord at each of the RTB hearings. He was excluded by the arbitrator part way through the second hearing.
[13] Mr. MacKean appeared and made the submissions on behalf of the landlord at the hearing of this petition.
[14] At the time the tenant applied for dispute resolution, he uploaded supporting documents and evidence through a portal system established by the RTB. That led to the creation of what has been described by the parties as the “first Notice of Dispute Resolution Proceeding”. That document refers to the supporting evidence and materials filed by the tenant at the time he initiated his application. Upon being served with the first notice the landlord similarly submitted evidence, including statements of the landlord and Mr. MacKean. This occurred in or about November 2021. Following that and in advance of the first hearing on March 27, 2022, the tenant uploaded additional evidence. This occurred in or about February 2022.
[15] At the first hearing the landlord sought an adjournment in order to have an in‑person hearing. That request was denied by the arbitrator.
[16] The hearing did not conclude on the first hearing date of March 7, 2022. The arbitrator issued a written interim decision which included a summary of the first hearing, including his reasons for refusing to adjourn the matter. There he summarized the landlord’s basis for seeking an adjournment as follows:
At the outset of the hearing, the landlord’s agent requested that this hearing be adjourned to an in‑person hearing for the following 4 reasons:
A. There was “last-minute” evidence submitted by the tenants.
B. The agent wants to cross-examine the 2 witnesses of the tenant.
C. Credibility cannot be determined over the phone.
D. We are seeking an administrative penalty against the tenants.
[17] He summarized his reasons for refusing the adjournment with a reference to Rule 6.4 of the Residential Tenancy Branch Rules of Procedure that require a form requesting a different format for the hearing to be filed within three days of the notice of hearing being made available. That time line had not been complied with. Additionally, he went on to deal with each of the four reasons as follows:
Regarding A, I specifically asked the respondent if they required additional time to respond to any evidence they considered “last minute” to which the agent replied, “no, if the hearing will be proceeding via (teleconference)”.
Regarding B, the respondent and agent were advised that they will be given full opportunity to cross-examine any witnesses via teleconference.
Regarding C, I disagree with the agent and advised the agent that I have conducted several thousand hearings and have no issues determining credibility via teleconference.
Regarding D, the parties were advised that an administrative penalty request by either party is moot as an application to the Compliance and Enforcement Unit of the RTB (RTB CEU) for an administrative penalty is not part of this dispute, is a separate process that is not related to this dispute, and of which I have no participation in and is solely a decision of the RTB CEU.
[18] Included with the interim decision was the second notice of dispute resolution proceeding. In that notice the additional evidence that had been uploaded by the tenant was listed.
[19] At the second hearing the landlord, through Mr. MacKean, took issue with the second notice and applied to have the arbitrator recuse himself. That request was denied.
[20] A subsequent request by the landlord for an adjournment to seek counsel or on the basis of an assertion of reasonable apprehension of bias was also rejected.
[21] The arbitrator’s written decision is dated June 1, 2022 and includes the following:
During the hearing, the landlord and their agent were both cautioned for interrupting the undersigned arbitrator. After failing to comply with my direction at the second portion of the hearing held on May 9, 2022, I muted both the landlord and their agent pursuant to RTB Rule 6.10. I will address the behaviour of the landlord and their agent further in this Decision.
. . .
At the reconvened hearing on May 9, 2022, the landlord’s agent requested that I recuse myself due to the creation of a “new document” and that the landlord’s agent alleged that there was a reasonable apprehension of bias due to the creation of the document, which was the second Notice of Dispute Resolution Hearing. The parties were advised that I declined to recuse myself as a Notice of Dispute Resolution Hearing is a standard document created in all disputes where an adjournment has taken place and is simply issued to both parties to advise the parties of the date and time and access codes of the reconvened hearing.
. . .
At this point in the hearing, the landlord requested an adjournment to seek legal counsel. This request was denied as the landlord was advised they had between March 7, 2022 and May 9, 2022 to arrange for legal counsel and failed to do so. I also find that such a request would be prejudicial to the tenants who have waited since they applied on August 17, 2021 for this matter to be heard and concluded. Given the above, the hearing continued.
The landlord testified that they were refusing to participate without counsel present and as a result, and after several interruptions and what I consider to be delay tactics on behalf of the landlord and their agent, the landlord and agent were muted until such time that the tenants and their counsel completed their testimony and submissions.
. . .
The landlord was given the opportunity to cross-examine the witnesses, and instead requested counsel, which I have already addressed above. As a result, the witness was excused.
. . .
The landlord claims they were denied a fair hearing, which I disagree with. I find the behaviour of the landlord and their agent to be argumentative and that due to their inability to follow direction, force me to mute them as indicated above, pursuant to RTB Rule 6.10.
Issues and Analysis
[22] I agree with the director that the style of cause should be amended as suggested in the Director’s response to petition and I make that order.
[23] The parties agree that the substantive issue that was before the arbitrator and that was the basis for his decision, and which must be reviewed here, is whether there were extenuating circumstances that prevented the landlord or a close family member from occupying the rental unit for at least six months after the effective date of the notice of termination.
[24] This is important as the only evidence relevant to that issue was the evidence of the landlord and Mr. MacKean. Issues of whether the notice to terminate had been given in good faith and whether or not Mr. MacKean or the landlord had resided in the unit after the notice were not dealt with in the decision.
[25] There is no issue that the landlord did not in fact occupy the premises for the requisite period. In fact, the evidence submitted by the landlord to the RTB never suggested otherwise. Rather, the statements of both the landlord and Mr. MacKean sought to explain why neither had occupied the premises for that period; that is to say, the statements submitted in evidence from them were to provide evidence of extenuating circumstances.
[26] In her petition the landlord asserts two categories of error by the arbitrator. The first relates to alleged errors by the arbitrator in analyzing and weighing the evidence. These allegations relate to the conclusions as to extenuating circumstances, but go far beyond that. She also refers to alleged frailties and problems with evidence relevant to other assertions made by the tenant. As noted, that evidence was not relevant to the arbitrator’s decision as extenuating circumstances.
[27] The second category are allegations of a series of procedural errors which rendered the hearing unfair. Those are fairly summarized in the tenant’s written argument as follows:
The creation of the second notice of dispute resolution;
The arbitrator’s decision to refuse Mr. MacKean’s adjournment request at the first hearing;
The arbitrator’s decision not to recuse himself from the second hearing;
The arbitrator’s exclusion/muting of Mr. MacKean from the second hearing;
The arbitrator’s decision not to adjourn the second hearing.
[28] The tenant asserts that because the arbitrator’s decision was based on analysis of the evidence of extenuating circumstances, a number of issues that have been raised by the tenant during the arbitration were ultimately irrelevant. As a result, much of the argument advanced by the landlord in the petition is similarly not relevant to the issues to be determined on judicial review.
[29] The tenant argues that the arbitrator’s decision regarding extenuating circumstances was based on the evidence that the landlord provided, the relevant legislation and the policy guidelines. The landlord notes that while the landlord argues the arbitrator’s decision was incorrect based on the landlord’s evidence, it is not the Court’s role to conduct its own assessment of that evidence.
[30] In relation to the alleged procedural unfairness, the tenant says the arguments are flawed and unfairness has not been established.
Relevant Legal Principles
[31] The role of the Court in reviewing what occurred during the arbitration is narrow. In Dunsmuir v. New Brunswick, 2008 SCC 9 it is described in part as follows:
[28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.
[32] The hearing of this petition is not a hearing de novo. There is evidence within the affidavit evidence submitted by the petitioner that expands on that which was presented during the arbitration. On the substantive issue of whether the landlord had established extenuating circumstances, I will not consider that evidence. To the extent the landlord suggests she was prevented from presenting any evidence I will consider that in the context of the assessment of the fairness of the hearing.
[33] The standard of review is patent unreasonableness by virtue of s. 5.1 of the Residential Tenancy Act, S.B.C. 2002, c. 78. Section 58 of the Administrative Tribunals Act, S.C.B. 2004, c. 45 [ATA] is applicable:
Standard of review with privative clause
58 (1) If the Act under which the application arises contains or incorporates a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.
(2) In a judicial review proceeding relating to expert tribunals under subsection (1)
(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable,
(b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and
(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness.
(3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
[34] In Yee v. Montie, 2016 BCCA 256, the Court of Appeal said this at paras. 21 and 22:
[21] The ATA does not define patent unreasonableness as the term applies to questions of fact or law. In Manz v. Sundher, 2009 BCCA 92 at para. 39, Saunders J.A. adopted the meaning of the phrase in relation to factual matters from Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80:
[37] As the chambers judge noted, a decision is not patently unreasonable because the evidence is insufficient. It is not for the court on judicial review, or for this Court on appeal, to second guess the conclusions drawn from the evidence considered by the Appeal Division and substitute different findings of fact or inferences drawn from those facts. A court on review or appeal cannot reweigh the evidence. Only if there is no evidence to support the findings, or the decision is “openly, clearly, evidently unreasonable”, can it be said to be patently unreasonable. That is not the case here.
[22] In Pacific Newspaper Group Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2014 BCCA 496 at paras. 39-44, this Court affirmed that the standard of patent unreasonableness is at the high end of the deference spectrum, and endorsed this description of the phrase from Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52:
… a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as “clearly irrational” or “evidently not in accordance with reason”. A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand. [Citations omitted.]
[35] Helpful perspective on the role of the reviewing court in reviewing the arbitrator’s decision is contained in two other decisions. From Potherat v. Slobodian, 2021 BCSC 1536:
[38] In determining whether a decision is patently unreasonable, the court is required to examine both the reasons and the outcome. In Sherstobitoff v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCSC 1659 at para. 52 the court stated reasons “are to be read as an organic whole, not parsed or dissected in search of error”.
[39] An arbitrator is considered an expert in all matters pursuant to the RTA, and is entitled to the highest curial deference in its interpretation and application of the RTA: McLean v. British Columbia (Securities Commission), 2013 SCC 67 [McLean]; and Webb v. Canada (Attorney General), 2019 BCSC 760.
[36] Further, from PHS Community Services Society v. Swait, 2018 BCSC 824:
[45] The approach to reviewing decisions must not be a “line-by-line treasure hunt for error”: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 at para. 54. Furthermore, defects in reasoning may not render a decision patently unreasonable if there is a rational basis for it. The test is applied to the result not to the reasons: Asquini v. Workers’ Compensation Appeal Tribunal, 2009 BCSC 62 at para. 85. However, that does not detract from the requirement that reasons be adequate in the sense of allowing a court to understand how and why the decision is made. Notably, this Court has recognized that “in the context of residential tenancy disputes the standard of adequacy is lowered because the governing legal regime is relatively straightforward”: Ganitano v. Yeung, 2016 BCSC 2227 at para. 24.
[46] Equally important to knowing what constitutes a patently unreasonable decision, is to identify what does not. A decision based on insufficient evidence is not patently unreasonable. It is only if there is no evidence can that standard be met: Speckling at paras. 33 and 37, and Dualeh v. British Columbia Housing Management Corp., 2006 BCCA 196 at para. 4. Nor is it necessary for a decision maker to make reference to each item of evidence: Buttar v. British Columbia (Workers’ Compensation Appeal Tribunal), 2009 BCSC 1228 at para. 70. Moreover, a decision inconsistent with a prior decision of the same tribunal does not render it patently unreasonable: Sager v. Boudreau, 2017 BCSC 837 at paras. 41-42.
[37] Procedural fairness incorporates the rights of each party to be heard in an impartial hearing.
[38] In Ndachena v Nguyen, 2018 BCSC 1468, Mr. Justice Sewell described it in these terms:
[56] The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker.
[39] Further, Rule 1.1 of the RTB Rules of Procedure states, “The objective of the Rules of Procedure is to ensure a fair, efficient, and consistent process for resolving disputes for landlords and tenants.”
Procedural Fairness
[40] The landlord’s proposition that there was some impropriety flowing from the preparation of the second notice of hearing is without merit. The tenant submitted evidence to the RTB in two tranches. There is no evidentiary basis to conclude that the arbitrator had any role to play in the in the submission of the evidence or its description. During the course of the hearing the arbitrator advised the landlord that the second notice was created in the ordinary course and done administratively within the RTB.
[41] In any event, as noted in the director’s response to this petition, s. 64(3) of the Residential Tenancy Act allows the director to “amend an application for dispute resolution or permit an application for dispute resolution to be amended.”
[42] The fact of the additional evidence having been submitted was not known to the landlord when she submitted her evidence and she only became aware of it relatively close to the commencement of the first hearing. She did, however, have it in advance. At the commencement of the first hearing the landlord raised as one of the issues in support of the adjournment the so-called “last-minute evidence”. In submissions before me, however, Mr. MacKean confirmed the accuracy of the statement in the interim decision by the arbitrator on the subject. Specifically, his request for an adjournment was not based on the fact of the new evidence, but rather on the basis that the landlord wished to have an in‑person hearing including in‑person cross-examination of the witnesses in respect of that evidence.
[43] In that regard, is important to keep in mind that the decision here was based on the assessment of evidence of extenuating circumstances pursuant to s. 51(3) of the Residential Tenancy Act. The “new evidence” had no relevance to that issue. The only evidence as to extenuating circumstances was provided by the landlord.
[44] In respect of having an in‑person hearing, the arbitrator appropriately noted Rule 6.4 that requires a request to be made within a specific timeframe. In addition, and despite noncompliance with that rule, the arbitrator went on to consider each of the basis that had been set out by the landlord in support of an adjournment.
[45] In PHS Community Services Society v. Swait, the Court noted:
[88] In Baker, the Supreme Court of Canada stated assessing procedural fairness requires a contextual approach in that the court looks to “the decision being made and its statutory, institutional, and social context” (para. 22) to determine if parties have been fully heard, and known the case against them. It is important to remember that Board hearings are less formal than tribunals acting in a quasi-judicial capacity, and hearings are often conducted by telephone. This does influence what procedural steps are required to accord with the duty of fairness.
[46] The arbitrator’s observation that assessing credibility in the context of a cross-examination by telephone was a reasonable one. In any event, as already noted, the credibility of the tenant’s witnesses was not relevant to whether extenuating circumstances had been established by the landlord.
[47] The arbitrator’s decisions in this regard were neither patently unreasonable nor unfair.
[48] At the second hearing Mr. MacKean sought to have the arbitrator recuse himself. This was on the basis of concerns the landlord had with respect to the preparation and content of the second notice of hearing. As noted above, there is nothing to support any valid concern of procedural fairness connected with that second notice and thus no basis for a recusal.
[49] It is true that the arbitrator was unwilling to hear Mr. MacKean make all of the comments he wished to make on the subject but, in the circumstances, there was no underlying merit to the concern raised and thus no reason to allow the landlord to say more on the subject. To do so would have been to use more of the limited time available.
[50] Certainly, a central component of procedural fairness is the right to be heard, but the arbitrator also has the power to manage the hearing. Fairness does not give any party the right to persist in advancing arguments that clearly lack merit or after the issue is ruled on.
[51] During the course of the hearing, the arbitrator noted that Mr. MacKean’s response to the arbitrator’s decision on the request for recusal was to assert a reasonable apprehension of bias. That led to further dialogue, with the arbitrator clearly telling the petitioner and Mr. MacKean that the hearing would proceed; that if Mr. MacKean persisted he would be excluded. The arbitrator invited the landlord or Mr. MacKean to present the landlord’s case. The landlord indicated she would not proceed without any agent or counsel. Mr. MacKean indicated in part, “I am certainly not able to continue as agent in these circumstances so it’s really the respondent who you have to ask as to whether or not she wishes to proceed”. Upon inquiry the landlord indicated, “I’m not proceeding anymore I am sorry”.
[52] It is my conclusion in all of the circumstances that the hearing was conducted fairly and the arbitrator’s decision’s on procedural issues were not patently unreasonable.
Patent Unreasonableness
[53] In terms of the substantial issue of whether or not the landlord had established extenuating circumstances, the arbitrator relied on and quoted at length the statements that had been provided by the landlord and Mr. MacKean on the issue.
[54] The arbitrator’s decision on the substantive issue is set out above in para. 6.
[55] His decision refers to RTB Policy Guideline 50 dealing with extenuating circumstances which included the following:
An arbitrator may excuse a landlord from paying additional compensation if there were extenuating circumstances that stopped the landlord from accomplishing the stated purpose within a reasonable period, from using the rental unit for at least 6 months, or from complying with the right of first refusal requirements. These are circumstances where it would be unreasonable and unjust for a landlord to pay compensation, typically because of matters that could not be anticipated or were outside a reasonable owner’s control. Some examples are:
• A landlord ends a tenancy so their parent can occupy the rental unit and the parent dies one month after moving in.
• A landlord ends a tenancy to renovate the rental unit and the rental unit is destroyed in a wildfire.
• A tenant exercised their right of first refusal, but did not notify the landlord of a further change of address after they moved out so they did not receive the notice and new tenancy agreement.
The following are probably not extenuating circumstances:
• A landlord ends a tenancy to occupy the rental unit and then changes their mind.
• A landlord ends a tenancy to renovate the rental unit but did not adequately budget for the renovations and cannot complete them because they run out of funds.
[56] The decision noted that COVID was entrenched by September 2020 when the notice to terminate was provided. The essence of the decision was that the landlord changed her mind about retiring and moving in to the unit in light of COVID; that it was not a development that prevented her from complying with the purpose set out in the termination notice.
[57] Within the decision the arbitrator notes:
The landlord confirmed the rental unit was listed for sale on April 12, 2021, which was the day after the landlord’s agent return[ed] to Manitoba from BC. The landlord testified that COVID was the largest part of their decision to sell the rental unit as morally, the landlord could not just retire when they were expected and felt compelled to develop a separate COVID unit given that the landlord is a high-level director at a hospital in Winnipeg, Manitoba.
[58] Within the statement of the landlord she describes the obligation for quarantine for 14 days on returning to Manitoba as of January 29, 2021. Also, in it is the following:
- The changing circumstances delayed my retirement plans, and it was apparent the Manitoba government was not lifting the restrictions in the near future. At the beginning of April I had no idea when I would feel comfortable retiring and I had no idea when I would be able to use my condo again.
[59] Within Mr. MacKean’s quoted statement is this:
From [January 28, 2021] on, there were significant problems in Manitoba with the Covid pandemic and there was a crisis within the healthcare system, and in her hospital in particular. By the beginning of April, Covid numbers were skyrocketing in Manitoba. . . .
As of March 16, 2021, I was still hoping that [the landlord] would be able to retire at the end of April and come to Kelowna. I continued to send her pictures of furniture for her to consider. . . .
However, by the end of March it was clear that due to circumstances beyond her control, she would not be able to travel or retire until much later. . . .
[60] The COVID pandemic has been an unprecedented event that had a massive impact on virtually every aspect of our lives. The landlord’s decision not to retire may be lauded as an example of how many in the health care industry stepped up at the expense of their own plans to assist others, making personal sacrifice for the greater good.
[61] The question before me, however, is whether the decision of the arbitrator is patently unreasonable. The decision to excuse the landlord from paying compensation is a discretionary one. Section 58(3) of the ATA says that is so if that discretion:
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
[62] I am unable to say any of those apply.
[63] Nor can it be described as “clearly irrational” or “evidently not in accordance with reason” or “so flawed that no amount of curial deference can justify letting it stand.”
[64] Whether I may have reached a different conclusion (and I make no comment on that question) is irrelevant. It is not my task to re‑weigh the evidence.
[65] Simply put, I am unable to say the decision was patently unreasonable.
Conclusion
[66] The petitioner has failed to show the hearing on either date was unfair or that the decision on the merits that resulted from the hearing was patently unreasonable.
[67] It is my conclusion that the petition must be dismissed.
[68] Subject to hearing submissions on costs, costs should follow the event. If either party is of the view that a different order as to costs should be made, they must notify the other as well as Supreme Court Scheduling within 21 days of release of this decision so that the scheduling of a hearing to determine costs can be undertaken.
“Betton J.”